The new Egyptian constitution: an initial assessment of its merits and flaws

The new Egyptian constitution: an initial assessment of its merits and flaws

Egypt cannot be
described as a religious state, given that political power remains firmly in
the hands of civilians, but religion will now play a real role in inspiring how
the state is to function. And military trials of civilians have been elevated
to a constitutional principle.

Following the
results of the referendum, in which 63.8% of voters appear to have approved the
text, the new Egyptian constitution is now the law of the land. The turnout was far lower than anyone
expected, with just over 32.9% of the population making their way to the polls,
which means that the constitution has been approved by a mere 21% of eligible
voters, clearly not a resounding victory for its proponents.

The poor showing
will have a number of consequences, including the prospect that the new
constitution’s popular legitimacy may be challenged for some time to come,
which in turn will detract from the effort to resolve many of the more pressing
problems that Egypt is facing today.

The debate
surrounding the new constitution has been acrimonious to say the least. Many of the constitution’s most ardent
critics have been scouring the text for evidence that the country’s Islamist
movements are preparing to create a morality police or that the legal age of
marriage is about to be lowered to 9.
Many of these accusations are either baseless or merely leftover
provisions from the 1971 constitution and were never applied in any meaningful
sense, which will likely to continue being the case under the new constitution. The reality is that, when measured
against Egyptian constitutional tradition, the new text brings a number of
improvements to the protection of certain rights and to the system of
government and is not the catastrophe that many have been so determined to
identify.

However, if the
measure is changed, there are perfectly valid reasons to be opposed to the new
constitution. For example, considering
recent developments internationally in the field of constitutional law,
particularly in many African and Latin American countries, or considering even
the aspirations that were expressed through the Egyptian revolution, the text
leaves the reader disappointed.

Apart from the
fact that much of the drafting is vague, a number of important rights are also
lacking, which has driven many activists to ardently oppose the text. It also does not present a convincing
vision in many areas, including decentralization, the role of independent
agencies and civil/military relations.

The purpose of
this contribution is to discuss some of the new constitution’s most salient
features, including the system of government, the role of religion, the
protection that the text affords to certain rights, civil/military relations
and decentralization. Firstly
however, the drafting process itself is deserving of some discussion
considering the impact that it has had on the manner in which the text is being
perceived in the country.

A flawed process

One of the more remarkable aspects of
Egypt’s constitution-drafting process is that it is the country’s first by an
elected body. Like so many other
Arab countries, Egypt’s past constitutions have been the exclusive product of
secret drafting sessions by unrepresentative and unelected political elites (to
date, the only other obvious exceptions are the ongoing Tunisian and Libyan
processes, and the Iraqi constitution, although the latter was drafted under
military occupation). In that
sense, the Egyptian process was in itself an accomplishment. After the election of a new parliament
early in 2012, the lower house nominated a 100-member constituent assembly to
draft the constitution. There was
significant controversy in how those 100 individuals were selected: the Muslim
Brotherhood-affiliated Freedom and Justice Party (FJP) considered it justified
on translating its electoral success to domination of the assembly, whereas the
opposition stressed that because parliamentary majorities were transitory, the
assembly’s makeup should reflect all aspects of Egyptian society. In the end, the FJP had its way, which
is what guaranteed the fact that, regardless of any disagreements within the
assembly, it would in any event be able to complete its work.

Fatally, the
assembly opted to use the 1971 constitution and existing traditions as a
starting point for its deliberations.
The effect is that while the new constitution claims to be a product of
the people’s will, it is heavily influenced by the preceding decades of
autocratic rule. So much so that many articles have simply been reproduced
verbatim in the final text. Thus, although the new constitution solves some of
the country’s more important problems (including the absence of presidential
term limits and a parliament without effective power), its insistence on
seeking inspiration from the 1971 constitution means that the same lapses
recur, and the same arms-length relationship between the state and the people
is maintained (the strongest evidence of this is the deeply flawed chapter on
decentralization; see below).

All this is in
stark contrast to the Tunisian constituent assembly, which took a decision
early on to set aside the miscarried 1959 constitution and to start with a
blank page. The Tunisian assembly
published its first complete draft just a few weeks ago, and it marks a clear
departure from the past: the assembly is making a genuine effort to respond to
the past’s failures as opposed to repeating them.

Perhaps one of
President Morsi’s biggest mistakes was the decision to maintain the drafting
process that had been established by the Supreme Council of the Armed Forces
(SCAF) in March 2011. The SCAF,
clearly not expert in democratic transition, imposed a 6 month timeframe for
the entire constitutional drafting process, precisely because it did not
understand the challenges that Egypt was faced with or because it preferred not
to see those challenges met.
Constitutional drafting is difficult in any context, but is particularly
complex when it involves multiparty negotiations. In a revolutionary context, there is little prospect of
drafting a modern constitution in 6 months precisely because so much needs to
be changed and because parties have to consult internally and with each other
on every issue. The 6 month
deadline was always going to be extremely problematic, which is why President
Morsi should have revisited the March 2011 interim constitution as soon as he
assumed his powers in June 2012.

There were many
alternatives for him to choose from, including the Tunisian model which is
currently proceeding with significantly more success than that of Egypt. In the end, meeting the deadline became
one of the process’ essential goals, regardless of what it meant for the prospects
for national unity. In the
process, the negotiations reached a state of hysteria before eventually
collapsing altogether: after a series of acrimonious accusations on all sides,
practically every non-Islamist member of the constituent assembly withdrew,
which has laid the basis for the constitution’s legitimacy to be questioned far
into the future.

An all
powerful president?

One of the
claims that have been repeated indefatigably over the past few weeks is that
the new constitution is designed to allow for a Muslim Brotherhood president to
dominate the political process and impose an Islamist agenda regardless of how
other institutions are made up.
However, an honest reading of the text does not support that
accusation. If the constitution’s
system of government is applied literally, the days of outright domination by a
strong executive are essentially over.
The parliament is given significant authority in the government
formation and dismissal process; it is protected from arbitrary dissolution and
has important oversight powers; and the president’s authority to declare a
state of emergency has been limited.
At the same time however, the president still has the authority to
involve himself in areas that he should not be involved in.

One of the
constituent assembly’s stated objectives from the start was to limit the
presidency’s powers in order to avoid the emergence of a new ‘pharaoh’ who
could come to dominate the country for the coming few decades. In that sense, the new constitution can
be said to have achieved its objective.
It clearly imposes term limits (article 133). The president must now also collaborate very closely with
the parliament during the government formation process, and any government must
present its programme to the parliament to be approved (article 139). The parliament itself is also empowered
to dismiss the government, the prime minister or any individual minister by a
simple majority of its members (article 126). Under the 1971 constitution, the parliament could only
dismiss the government after obtaining the president’s approval or if the vote
of no confidence obtained a two-thirds majority (article 127). Strong mechanisms are also afforded to
parliamentary minorities by giving individual members the right to request
information or to demand a statement from the government or even to interrogate
the prime minister in relation to urgent matters of public importance (articles
123-125). Finally, the constitution imposes strong
restrictions on the president’s power to call a state of emergency, and on the
powers that the president can exercise during that period (article 148).

Some habits die
hard however and the president still has more power, particularly in relation
to the nuts and bolts of government, than is appropriate in the circumstances.
By way of example, the president still has the power to appoint 1/10 members of
the upper chamber of parliament (article 128), which gives the president an
unjust and undeserved amount of leverage over the legislative process.

A related issue
is that the president is responsible for appointing the heads of all just about
every independent agency in the country, including its audit institution and
the central bank. Although the
appointment has to be approved by the upper house, given the president’s power
to appoint a large portion of its members, the process is skewed in his favour
in ways that are difficult to justify.
The impact is to limit the independence of each of these institutions at
a time when the executive’s accountability needs to be assessed and measured by
institutions that are as independent as possible. This is a major flaw that should have been rectified during
the drafting process.

Finally, the judiciary
will also continue to check executive and legislative abuses of authority. Judicial independence is protected
(articles 168 and 170), and a clear mechanism is provided for the appointment
of the public prosecutor in a way that also safeguards independence (article
173). The supreme constitutional
court is still exclusively competent to review the constitutionality of laws
(article 175).

Regrettably, many
of the 1971 constitution’s flaws reemerge in the new text. Amongst other things, there is no
detail on how judges are to be appointed or dismissed, nor is any information
provided on how their salaries are to be determined (all essential cornerstones
of judicial independence).
Awkwardly also, although the supreme judicial council (the body that is
responsible for overseeing the functioning of the entire judicial sector) is
mentioned in passing in three different provisions in the constitution, it is
never actually defined anywhere. Obviously,
there is existing legislation in Egypt that govern these areas but the point is
that there are some principles (such as that a judge can only be dismissed in
exceptional cases of misconduct, etc.) that should be immutable and that should
have been spelled out clearly in the constitution.

An Islamic
state?

After decades of
corruption, mismanagement, brutality and deception, Egypt is in need of a new
set of standards that can guide the state to better serve its people. Some hoped the revolution could fill
the void, but the elections brought an Islamic majority to parliament and a
president who is affiliated to the Muslim Brotherhood, which considers that religion
is the answer. Their beliefs were
translated into specific constitutional provisions which some in the opposition
camp have alleged establish a religious state in violation of a commitment to
maintain the existence of a “civil state” (see below). A close reading of the new constitution
does not support that allegation, although there is some worrying wording that
is in need of more clarity. In
summary however, the constitution builds on the notion that Egypt is a
religiously inspired state, but does not actually establish a religious state
per se.

As an
introductory point, Egypt prior to the revolution was not strictly speaking a
secular state in the western sense of the word, nor was it a religious state. Religion has long played an important
role in all Arab countries; amongst other things, family law has always been
determined by religious rules, thereby prohibiting anything resembling a civil
marriage. At the same time,
clerics did not occupy official positions of power within the state, which
meant that Egypt could not be properly described as a religious state
either. In that context, Egypt has
newly been designated as a “civil state”, a generally undefined term but which
is generally understood to mean that the country should be administered and led
by civilians as opposed to military personnel and religious figures. One of the principal aims of
revolutionary, secular and liberal groups since the start of the uprising in
2011 was that Egypt should remain a ‘civil state’, particularly with a view to ensuring
that the Muslim Brotherhood’s senior clerical leadership would not be given
official roles within the state.

The debate on
this issue initially focused on article 2, which was included in the 1971
constitution to mollify Islamists while at the same time creating enough space
for legal interpretation to minimize the provision’s impact. The provision, which was eventually
maintained word for word in the new constitution, states that “the principles
of Islamic Sharia are the principle source of legislation”. At the time when article 2 was
initially included, the trick was to specify that it was the “principles” of
Islamic Sharia that would inspire legislation, a term that was both an innovation
and that was left undefined. Finally,
in order to ensure that the provision would be emptied of any effective
meaning, interpretation was left to the courts, which were not particularly
sympathetic to the idea of a religiously inspired state. In the end, article 2 was interpreted
as referring to a very limited number of principles, which have barely left
their mark on Egyptian state and society.

In June 2012, as
the constitutional drafting process commenced, a commitment was made early on to
leave article 2 unchanged. That
agreement was designed to reassure liberals and others that Egypt was not
headed on the path of increased Islamisation. However, it was always certain that the Islamist-dominated
constituent assembly would seek to correct the way in which the courts have
limited the application of article 2.
Thus, instead of amending article 2, an additional two provisions were
included in the final text that would determine what the term “principles” of
Islamic Sharia means and who was responsible for interpreting that term. Thus, although these two provisions do
not literally amend article 2, they change the manner in which it is to be
understood and applied in ways that many liberal members of the assembly did
not originally anticipate.

The two new
provisions include article 219, which widens the scope of article 2
considerably beyond what the courts had previously decided. “Principles of Islamic Sharia” now
includes all the rules of jurisprudence and credible sources that are accepted
in Sunni doctrines, amongst other things.
What this means is that the entire body of Islamic jurisprudence (a
complex body of law that goes back centuries) is now a source of inspiration
for legislation. The
constitution’s detractors immediately complained that this would force
legislators to contemplate sources of law that are now centuries out of date;
many also expressed the concern that the criminal code would be brought in line
with some of the more stringent forms of Sharia, which include corporal punishment. Although the jury is still out on how
article 219 will impact on existing and future legislation, there is agreement
that the entire body of Islamic jurisprudence is sufficiently broad to include
various opinions (some moderate and others more severe) about most issues,
which means that legislators and courts will still have sufficient room to
maneuver as they carry out their work.

Given that
Islamic Sharia is such a broad area and that opinions vary within that body of
law, the question as to who is responsible for interpreting Sharia becomes
crucial. The constituent assembly
resolved that matter through article 4, which states that the opinion of Al-Azhar
(one of the Islamic world’s most venerable institutions) must be obtained on
all matters relating to Sharia.
From the provision’s wording, there is little doubt that such
consultation is mandatory and that it must be sought by all bodies (including
the courts and parliament). The
courts therefore remain responsible for applying and interpreting the law, as
well as for ensuring that legislation is in conformity with the constitution
(and by extension to Sharia), but must now consult al-Azhar. What remains unclear is the weight that
will be attributed to al-Azhar’s individual opinions. Article 4 itself clearly indicates that its opinions will
not be binding but some commentators have expressed the concern that a court
will be hard pressed to contradict an opinion that is provided by al-Azhar; at
the same time, the constitution clearly does provide the courts with the scope
to disagree with an opinion by al-Azhar, for whatever reason (including for
example if it disagrees with the opinion’s logic or if it considers that
al-Azhar did not consider all the relevant sources), and does not prohibit the courts
from seeking other opinions in relation to the same matter.

What is more
certain however is that these provisions have reinvigorated the struggle to
control al-Azhar and its Council of Senior Scholars. Decades of autocratic rule are reputed to have left the
institution without teeth. Despite
the fact that its independence is nominally protected by the constitution,
Islamists of all stripes will seek to influence its makeup over the coming year
given the role that it has been attributed. One possible means to achieve that is the legislation that
the constitution calls for to organise al-Azhar’s internal affairs. This will clearly be one of the first
issues that will be addressed after the new parliament is elected in the coming
months, and will draw some of the more important battle lines between the
country’s various camps.

Finally, it is
worth dismissing some of the more extravagant theories that have been expressed
about some of the provisions. In
particular, it has been said that article 10 which provides that the “state and
society oversee the commitment to the genuine character of the Egyptian family”
was deliberately included in the constitution by the constituent assembly’s
more hardline islamists to allow for the establishment of morality police that
would roam neighborhoods to enforce a traditional and hardline vision of
society. The reality however is
somewhat less ominous: article 10 is copied almost verbatim from article 9 of
the 1971 constitution, a provision that essentially had no practical impact for
decades. Thus, rather than being a
perverse attempt to establish a Saudi-style religious state by stealth, article
10 is actually the product of offhand copying and pasting by a constituent
assembly that was determined to meet a short deadline for completion. Some critics have nevertheless
expressed the concern that under an Islamist administration, article 10 takes
on a different meaning; that may be so, but it is just as likely that it will
in fact remain little more than symbolic wording with no practical
application.

In summary,
Egypt’s Islamist rulers have given their spiritual counsellors a role in
inspiring the direction that the state should head in, without actually giving
them any hard political power (the Muslim Brotherhood’s representatives in
government are all professionals, many of whom hold PhDs in science-related
subjects, and who have little desire to hand over power to clerics). Egypt cannot therefore be described as a
religious state given that political power remains firmly in the hands of
civilians, but religion will now play a real role in inspiring how the state is
to function. Whether that leads to
better governance, less corruption, more hardline punishment or moderation
remains to be seen.

The protection
of rights

The protection
of fundamental rights under the constitution has been particularly
controversial from the start. The final text imposes a socially conservative
vision of society on the country, is economically progressive but restricts the
exercise of certain rights in way that are not in keeping with best practice or
with democratic ideals. The
controversy has centered mainly on the status of women and on other rights
including freedom of expression.
The text itself is a mixed bag: it is certainly not as progressive as
many western constitutions on social issues (and was never intended to be), but
sets out a number of aspirations on economic rights that will be hard to beat
and almost impossible to implement, at least in the short term. Some of the rights are also
disorganized and vague, making them sometimes difficult to understand.

The starting
point on women’s rights has to be an honest appreciation of Egyptian
constitutional tradition on this same issue. Egyptian society, like many others in the region, is deeply
conservative and that has been reflected in its constitutional history. The 1971 text (which many commentators
today mistakenly consider to have been a liberal text) included awkward
language imposing on women the obligation to work and to care for their
families without imposing any equivalent duties on men. The text also did not explicitly
prohibit discrimination on the basis of sex. In 2012, many liberal members of the constituent assembly
sought to resolve this issue firstly by specifically prohibiting sexual
discrimination and by removing any reference to women’s obligations towards
their families. After a number of
iterations and rewordings, liberals appear not to have obtained any
concessions. Although a provision
from an earlier draft that was particularly reviled by civil rights groups was
eventually deleted, most of its provisions reappeared elsewhere. Some of these provisions (including article
10) reproduce verbatim the wording the 1971 constitution had used on this
issue, and once again forces upon women obligations towards family and society
without imposing any such role on men.

Thus, although
the new constitution probably accurately reflects the values of a large segment
of society on this issue, there is reason for disappointment for several
reasons. Firstly, although many
Egyptians are socially conservative, every woman (and man) should be free to
decide whether to marry or have children without the state’s necessarily being
involved. Explicitly calling for
the promotion of a conservative vision of society encroaches on the personal
freedom of citizens to make their own individual choices.

Secondly,
constitutions in many post-revolutionary societies are often used to promote
and defend values that are not always necessarily in line with the majority’s
values. Strong constitutional
protections can often spearhead a positive change in society, or at the very
least can defend the rights of the individual against an overbearing
majority. A case in point is the
abolition of the death penalty in
South Africa despite the fact that it was and remains very popular in many
circles. The constitutions of
Spain, Ecuador, Bolivia, Kenya, etc. all call for strong protections against
gender discrimination, even though societal values do not necessarily agree. Progress in Latin America (a famously
conservative region) has now reached the point where several women have been
elected head of state in countries where such a thing was considered impossible
just a few decades ago.

Thirdly,
stronger protections against gender discrimination in Egypt were always
achievable; other countries with similarly conservative populations have
offered strong safeguards, including the current Tunisian constituent assembly
which finally accepted, after significant pressure from civil society, that
gender discrimination should be explicitly forbidden. Egypt’s new constitution will therefore come as a
disappointment to those members of civil society who might have been able to
influence the outcome with the right type of access to the drafting body.

Freedom of
expression under the new constitution presents a
more complex problem. Well written
constitutions tend to consolidate all matters relating to a single issue within
a single provision, to the extent possible. That approach is not only useful for interpretation purposes,
but is also helpful for any member of the general public when consulting the
text. The Egyptian constitution
does not follow that approach.
Article 45 grants freedom of thought and opinion in absolute terms; no
limitations are provided, which by itself would be ideal to any advocate of free
speech. The reality however is
that there are many other limitations to free speech that are peppered
throughout the text, some of which are not easy to find. An obvious limitation is article 44,
which prohibits any speech that would defame religious messengers and
prophets. Another is provided for
in article 31 according to which insulting and showing contempt to any human
being is prohibited. There are
less obvious candidates; for example, article 198 provides that civilians can
be tried before military courts for “crimes that harm the armed forces”, which
if interpreted broadly can include accusations of corruption or mismanagement
within the military.

Together, these provisions
illustrate a number of problems with Egypt’s constitution. The first relates to the quality of the
drafting. Today, constitutions are
no longer perceived as being solely within the purview of legal scholars. In keeping with modern democratic
practice, they are supposed to be readable and accessible by any member of the
general public, particularly in developing countries where the free exercise of
rights has been restricted in part because of a lack of access to
information. Egypt’s constitution
does not adopt that approach, as illustrated by the provisions on freedom of
expression. The fact that one has
to review the entire text and decipher opaque provisions to understand where
the limitations lie essentially means that an Egyptian layman has little hope
of understanding where her rights lie on her own. In fact, even constitutional scholars who have little else
to do with their time will likely have trouble understanding how the right
should be exercised under the constitution.

Another major
problem is the nature and wording of some of the limitations themselves. Despite concerns that have been
expressed by the opposition camp, some of the limitations are legitimate and
are in fact quite common in progressive countries (even the European Convention
on Human Rights allows for speech to be restricted to protect the reputation of
others). Also, although the prohibition against
defaming prophets is clearly not in keeping with modern comparative practice, Egypt
as a nation has the prerogative to decide whether the matter is sufficiently
important for its people to justify a limitation on speech, in the same way
that the desire to protect the reputation of others can justify such a
limitation. The difficulty lies in
the wording of the limitations themselves which is so vague that it will most
probably lead to severe restrictions on speech. For example, the current wording of article 44 could easily
be used to prevent theological debates between different religious
denominations given that, for example, denying that a particular individual was
a prophet without necessarily attributing any negative qualities to him could constitute
defamation in the minds of many.
Also, article 31 could easily prevent any type of accusation from being
made against a senior official of mismanagement or even corruption in various
circumstances, given that no distinction is made between senior officials and
the remainder of the population.

One final
surprise in the new constitution is the limitations clause that makes an
appearance in article 81. It has
been common in modern history (particularly in the Arab region) for
constitutions to indicate that fundamental rights are to be regulated by
legislation, and for that same legislation to so restrict the exercise of that
right that it may as well not have been granted in the first place. Today, many constitutions in Africa and
Latin America seek to resist that trend by including what is referred to as
limitations clauses, which provide that legislation cannot detract from the
right’s very nature. Article 81
was first suggested as a means to achieve that same objective, but a third
paragraph was incorporated which some commentators have argued may have the
opposite effect. It ensures that
all of the rights that are provided for in the constitution must be exercised
in accordance with the constitution’s second chapter, which is the chapter that
establishes social justice as a priority and family as the cornerstone of society. The concern is therefore that the
rights will have to be applied and interpreted in accordance with a
conservative vision of society.
Once again, the difficulty with this provision is not that it leads
Egypt down a dark path, but that its effect is at this stage almost impossible
to predict. There are other
provisions however whose applications are clearly negative and that have caused
many to reject the constitution altogether.

The darker
side

Those provisions
include the section on decentralization and civil/military relations. These two areas have come as a surprise
to many analysts because they so clearly fail to meet the democratic
aspirations of the people and because they aim to protect entrenched interests
at the expense of the nation.

The trend
towards greater decentralization is a world-wide phenomenon because it
aims to bring democracy closer to the people. In the Arab region, the trend has been resisted based on a
number of falsehoods that have been spread by despotic regimes. The argument that they have used is
that decentralization is one step away from federalism, which is itself the
precursor to a country breaking apart along sectarian lines. The truth in fact is that
non-democratic regimes have used highly centralized forms of government to
maintain an iron-grip on power and control their populations to the fullest
extent possible. As a result, Arab
countries to this day maintain amongst the most centralized forms of government
in the world, where local officials are typically appointed and dismissed at
will by central ministries and where local elections (if they take place at
all) are completely meaningless.

Consequently,
service delivery outside the capital is almost invariably a disaster throughout
the Arab region. Egypt has not
escaped that trend (indeed it was one of the pioneers in establishing it in the
first place) and the new constitution is no exception in that regard. It calls for local councils to be
elected (article 188) but allows for any of their decisions to be overturned by
the central government in order to prevent “damage to the public interest”
(article 190). Worse still, the
constitution does not indicate how governors will be chosen (whether elected or
selected) and makes no attempt to define their powers (article 187), leaving
all of these crucial matters to be decided by subsequent legislation, as has
been the case for the past few decades.
Finally, earlier drafts called for a financial redistribution mechanism
between provinces to remedy the gross disparities that exist in the
country. That provision has now
been deleted from the final version.
There is therefore nothing stopping the former highly centralized system
from continuing to operate in the future.

Worse still are
the provisions on civil/military relations. Early on in the drafting process, a large number of assembly
members identified the need to end military trials of civilians as a
priority. This has been a key revolutionary
demand from the start of the uprising in January 2011, and grew over time just
as the military’s influence on the state grew throughout 2011 and 2012. Several provisions were therefore
included in various parts of the draft that called for the practice to end. The final draft however overturned
whatever progress might have been made by explicitly stating that civilians can
be tried by military courts for crimes that “harm the armed forces” (article
198). The term is left to be
defined by subsequent legislation.
In the past, the practice was the product of legislation that could be
overturned by new legislation.
Today, military trials of civilians have been elevated to a
constitutional principle, making it much harder to overturn. It would have been far better if the constitution
had remained silent on this issue.

Also surprising
is the establishment of a national defense council and the powers that have
been granted to it. In 2011, the
SCAF sought to preempt the constitutional drafting process by drafting what was
referred to at the time as the “supra-constitutional principles document”. That document was so biased in favor of
maintaining the military’s autonomy that it led to massive protests in the
country, which eventually resulted in dozens of deaths and thousands of
wounded. One of the offending
principles was the notion that the military’s budget should remain secret and
outside the scope of civilian oversight.
Although the SCAF’s initiative was dropped as a result of popular
opposition, that particular provision made a comeback during the constitutional
drafting process. An early draft
also maintained that the military’s budget should appear as a single figure in
the annual state budget law without a breakdown. That has now been watered down somewhat in the final draft,
which provides that the national defense council (which has 8 military members
and 7 civilians) is now responsible for discussing the military’s budget
(article 197). The reference to a
“single figure” has been removed and there is no indication that the council is
exclusively competent to discuss the matter, which leaves open the possibility
that the parliament may be able to review the military’s budget as well. The fact remains however that the
military has been granted a prerogative that its counterparts in other
countries do not enjoy. Once
again, it would have been far better had the constitution remained silent on
this point.

A final word

Altogether, in
comparison with Egypt’s constitutional traditions, the new text is not the
disaster that its detractors claim it is, nor is it the incredible leap forward
that its proponents have been boasting of. It is also clear that Egypt’s constitutional reform is far
from over. The coming
parliamentary elections will determine not only how the text will be applied,
but also its prospects for surviving the coming period.

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